Kaliniak v. Joline

123 N.Y.S. 54

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 24, 1910
• Status: Published

Opinion

GUY, J.

This is an appeal from a judgment dismissing the complaint in an action to recover for personal injuries resulting from a •collision, at the intersection of Prince and Mulberry streets, between •defendants’ car, on which plaintiff was a passenger, and a truck which was being driven upon Mulberry street.

The evidence of plaintiff’s witnesses shows that the car was going “very fast” as it approached the crossing, and that they at that time observed the truck approaching the car tracks. In the collision the shafts of the truck struck the car about the middle of the car. The driver of the truck testified that he was coming through Mulberry street north at a fairly good rate of speed, and, nearing Prince street, saw this car coming along; that he did the best he could to stop his horses, but could not stop his horses in time; that the car did not stop at the west corner of Mulberry street, and did not slacken its speed before the collision; that when the car reached the west side of Mulberry street he was about 25 feet in Mulberry street, going north; that the car and truck got there at the same time, or the car was a second or two ahead. While the jury, on this evidence, might have found the defendants to be free from negligence, there was sufficient evidence of negligence to require the submission of the case to the jury. Vogel v. Union Ry. Co. (Sup.) 115 N. Y. Supp. 284; Maher v. Met. St. Ry. Co., 102 App. Div. 517, 92 N. Y. Supp. 825.

The dismissal of the complaint was therefore erroneous, and the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.